Kerala High Court
Archana vs Sanu.K.Manoj on 29 May, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:38220
OP (FC) NO. 150 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947
OP (FC) NO. 150 OF 2025
AGAINST THE ORDER DATED 18.02.2025 IN I.A.NO.1/2025 IN OP
NO.60 OF 2020 OF FAMILY COURT, PALAKKAD
PETITIONER/PETITIONER/PETITIONER:
ARCHANA
AGED 29 YEARS
W/O SANU.K.MANOJ, KRISHNA NIVAS NADAKKAVU, AKATHETHARA
P.O, PALAKKAD REPRESENTED BY POWER OF ATTORNEY HOLDER
RADHAKRISHNAN, AGED 64 YEARS, S/O KITTU KRISHNA NIVAS,
NADAKKAVU, AKATHETHARA P.O, PALAKKAD, PIN - 678545
BY ADVS.
SRI.L.RAJESH NARAYAN
SMT.KEERTHANA SARIGA T.S.
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 SANU.K.MANOJ
AGED 34 YEARS
S/O MANOJ, 1ST FLOOR, MANAPPURATH (H) PALAMUTTAM ROAD,
EDAKOCHU, OPP. AQUINAS COLLEGE ERNAKULAM, PIN - 682010
2 SUMA
AGED 58 YEARS
2025:KER:38220
OP (FC) NO. 150 OF 2025
2
W/O MANOJ, 1ST FLOOR, MANAPPURATH (H) PALAMUTTAM ROAD,
EDAKOCHI, OPP. AQUINAS COLLEGE ERNAKULAM, PIN - 682010
3 SONY
AGED 31 YEARS
D/O MANOJ, 1ST FLOOR, MANAPPURATH (H) PALAMUTTAM ROAD,
EDAKOCHI, OPP. AQUINAS COLLEGE ERNAKULAM, PIN - 682010
BY ADVS.
SRI.A.J.SHAHEER
SRI.A.B.JALEEL
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
29.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:38220
OP (FC) NO. 150 OF 2025
3
JUDGMENT
DEVAN RAMACHANDRAN (J) The petitioner challenges Ext.P9 order of the learned Family Court, Palakkad, through which, it dismissed I.A. No.1/2025 in O.P.No.60/2020.
2. The petitioner submits that she attempted to amend the above Original Petition filed by her, incorporating an averment that a gold chain belonging to her had been sold by her husband just after marriage, when she had gone to his house before she went abroad. She says that she had omitted to aver this in the Original Petition because she did not recollect it on account of failing memory; but that when she came to be aware of it, she made the application, so as to amend the pleadings appropriately. She says that, however, the learned Family Court misunderstood the ambit of the application and has dismissed it through the impugned order, under the 2025:KER:38220 OP (FC) NO. 150 OF 2025 4 wrong impression that her attempt is to subvert the question of maintainability of the Original Petition, now raised by the respondent before it.
3. Sri.L.Rajesh Narayan Iyer - learned counsel for the petitioner, admitted that the respondents had filed I.A.No.1/2023 contending that the Original Petition filed by his client was not maintainable before the learned Family Court; and that, against the order issued on it, finding the issue of maintainability in his client's favour, the respondents moved this Court, to obtain a judgment dated 30.10.2024, through which, the said order was set aside and the question of maintainability ordered to be decided as an issue to be framed before trial. He asserted that his client's intention is not to intervene with the issue of maintainability, but only to tell the truth, through the amendment. He thus prayed that 2025:KER:38220 OP (FC) NO. 150 OF 2025 5 Ext.P9 be set aside, arguing that the amendments of pleadings ought to have been considered liberally by the learned Family Court, within the ambit of Order VI Rule 17 of the Code of Civil Procedure (CPC).
4. In response, Sri.A.J.Shaheer - learned counsel for the respondents, argued that the learned Family Court has found correctly that the real intent of the petitioner is only to render the Original Petition maintainable before it. He added that this is manifest from the factum of his client having moved I.A.No.1/2023 against the maintainability of the Original Petition before the learned Family Court; and that it was only after it was directed to be considered as an issue by this Court, that the petitioner has filed I.A. in question. He additionally submitted that the averments in the interlocutory application are 2025:KER:38220 OP (FC) NO. 150 OF 2025 6 totally incorrect and untrue and hence that the amendments were not deserving of being allowed, as has been rightly found by the learned Family Court.
5. We have considered the afore rival submissions on the touchstone of the various materials on record, particularly Ext.P9 order.
6. We notice from the impugned order that the learned Family Court has held that recollection of a fact by the petitioner relating to a new cause of action is not a "fair recollection" and the purpose of the proposed amendment is only to confer jurisdiction to the said Court.
7. We do not find blame with the learned Family Court in having thought so because, I.A.No.1/2023 - filed by the respondents against the maintainability of the Original Petition - was 2025:KER:38220 OP (FC) NO. 150 OF 2025 7 filed nearly two years prior to the petitioner approaching the learned Family Court with her present application.
8. However, it must be borne in mind that the provisions of orders VI Rule 17 of the CPC renders it that Courts have to deal with amendments liberally, except if the cause of action is altered or if the colour of litigation itself is changed.
9. In the case at hand, the petitioner has only sought to bring in a further averment in her original petition that a gold chain weighing two sovereigns had been sold by the 1 st respondent on the 41st day of marriage, when she went to his house, before leaving abroad.
10. No doubt, prima facie, this can be construed to be attempt to confer jurisdiction of the Court, but for that reason alone, it would not 2025:KER:38220 OP (FC) NO. 150 OF 2025 8 be prudent to disallow the same since, it is a question of fact which requires to be answered by the court after the parties lead evidence.
11. That apart, there would be no prejudice to the respondents at all because, this Court has, admittedly, directed the question of maintainability to be decided as an issue in trial; and obviously, therefore, the same will depend upon the evidence to be led, including on the question whether there was any sale of the gold chain by the respondents, as has been alleged by the petitioner.
12. To paraphrase, the question of maintainability is no longer a preliminary issue, but ordered by this Court to be decided after trial; and hence every allegation and averment on facts can certainly be evaluated by the learned Family Court, based on the evidence to be led by 2025:KER:38220 OP (FC) NO. 150 OF 2025 9 the parties.
13. In such perspective, the question of maintainability would never be solely guided by the amendments now sought for by the petitioner.
In the afore circumstances, this Original Petition is allowed and Ext.P9 is set aside. Consequently, I.A.No.1/2025 in O.P.No.60/2020 is allowed.
The learned Family Court will proceed with the Original Petition before it, with all necessary action and consequences following from our directions above.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B. SNEHALATHA JUDGE SAS 2025:KER:38220 OP (FC) NO. 150 OF 2025 10 APPENDIX OF OP (FC) 150/2025 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL PETITION NO.60/2020 BEFORE THE HON'BLE FAMILY COURT, PALAKKAD Exhibit P2 TRUE COPY OF I.A NO.1/2023 DATED 14.10.2023 IN ORIGINAL PETITION NO.60/2020 BEFORE THE HON'BLE FAMILY COURT, PALAKKAD Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED NIL TO EXT.P2 IN ORIGINAL PETITION NO.60/2020 BEFORE THE HON'BLE FAMILY COURT, PALAKKAD Exhibit P4 TRUE COPY OF THE ORDER DATED 15.4.2024 IN I.A NO.1/2023 IN OP NO.60/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, PALAKKAD ALONG WITH ITS TYPED COPY Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 30.10.2024 IN OPFC NO.402/2024 Exhibit P6 TRUE COPY OF IA NO.1/2025 DATED 11.1.2025 IN OP NO.60/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, PALAKKAD Exhibit P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO EXT.P6, DATED 20.1.2025 IN OP NO.60/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, PALAKKAD Exhibit P8 TRUE COPY OF THE WRITTEN STATEMENT DATED 20.2.2025 IN OP NO.60/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, PALAKKAD ALONG WITH ITS TYPED COPY Exhibit P9 TRUE COPY OF THE ORDER DATED 18.2.2025 IN I.A NO.1/2025 IN OP NO.60/2020 ON THE FILES OF THE HON'BLE FAMILY COURT, PALAKKAD